People v. Leon

• Decision Date: 25 January 2007
• Docket Number: No. S137137.,S137137.
• Citation: 53 Cal.Rptr.3d 524,40 Cal.4th 376,150 P.3d 207
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Avelino LEON et al., Defendants and Appellants.

53 Cal.Rptr.3d 524

40 Cal.4th 376

150 P.3d 207

The PEOPLE, Plaintiff and Respondent, v. Avelino LEON et al., Defendants and Appellants.

No. S137137.

Supreme Court of California.

January 25, 2007.

Kenneth H. Lewis, Los Angeles, Peter N. Priamos, Torrance, and Arthur Lewis, Los Angeles, for Defendant and Appellant Avelino Leon.

Sandra Uribe and Nancy Gaynor, under appointments by the Supreme Court, for Defendant and Appellant Victor Aceves.

Bill Lockyer, Attorney General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Kristofer Jorstad and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

Defendants Avelino Leon and Victor Aceves were arrested as part of an investigation into the Arellano-Felix drug trafficking organization, which was "believed by law enforcement agencies to be one of the most violent drug trafficking organizations in the Republic of Mexico." (U.S. v. Hodoyan-Palacios (S.D.Cal.1998) 993 F.Supp. 789, 790.) Defendants seek to suppress the contents and all fruits of five wiretaps that were instituted as part of the investigation, claiming that the wiretaps violated California law (Pen.Code, § 629.52, subd. (d)) and the Fourth Amendment in that the government's affidavits in support of the applications failed to establish necessity for the wiretaps.

Both the superior court and the Court of Appeal determined that the wiretaps were lawful and denied defendants' motion to suppress. (PemCode, § 629.72.) We affirm.

Background

The five wiretaps at issue here—wiretap Nos. 00-02 and 00-04, wiretap No. 00-02 extension No. 1, and wiretap No. 00-39 extension Nos. 1 and 2—were part of a multiagency task force investigation of a major Mexico-based narcotics trafficking organization that culminated in the arrest of 23 people in the United States. The arrests included narcotics suppliers, importers, distributors, transporters, and customers. Approximately 214 kilos of cocaine, 1,150 pounds of marijuana, $1.2 million in United States currency, and numerous firearms (including assault weapons) were seized.

Evidence obtained from the wiretaps was used to prosecute defendants Avelino Leon and Victor Aceves in state court. After the superior court denied their motions to suppress the contents of the wiretaps and any evidence seized therefrom (Pen.Code, § 629.72), Leon pleaded no contest to possession with intent to distribute in excess of 20 kilos of cocaine and was sentenced to 17 years in prison. Aceves pleaded no contest to conspiracy to sell in excess of 10 kilos of cocaine, as well as use of a false compartment in a motor vehicle with intent to conceal controlled substances, and was sentenced to 15 years, eight months.

Wiretap No. 00-02

The Los Angeles County District Attorney's application for wiretap No. 00-02, dated January 25, 2000, was supported by an affidavit from Stephen P. Diederich, a special agent with the federal Drug Enforcement Administration. The application described "Target Telephone # 1" as a prepaid cell phone subscribed to by one Guillermo Rodriguez of 4727 W. 17th Street in Lawndale and requested authorization to intercept communications by Rodriguez, Leon, Aceves, unidentified males Nos. 1 and 2, and other coconspirators. Special Agent Diederich stated that Guillermo Rodriguez was an "unidentified person" and that the Lawndale address was a fictitious address—although defendants Leon and Aceves did reside at 4727 W. 149th Street in Lawndale. Diederich explained that, in his experience, high-level drug traffickers frequently use prepaid cell phones because no identification is required, the phones can be thrown away at any time, and the replacement phone cannot be traced back to the user.

The affidavit described an ongoing investigation using wiretaps into a Mexicanbased drug trafficking organization with associates in Los Angeles. The investigation had resulted in the arrests of several conspirators and the issuance of arrest warrants for other fugitives. A prior wiretap on a discarded prepaid cell phone (wiretap No. 99-32) had revealed numerous contacts during the period of April to June 1999 between narcotics traffickers from the Los Angeles-based distribution network and an unidentified male, who was believed to be a top-ranked United States-based manager for the organization. Special Agent Diederich believed that Target Telephone # 1 was being used by the holder of the discarded cell phone that was the subject of the prior wiretap (No. 99-32), or by a person playing a similar role in the organization, because the phones had dialed more than two dozen numbers in common. Prior intercepts of conversations involving those common numbers related to the manufacturing of methamphetamine money laundering, and illegal border crossings.

The affidavit declared that a wiretap was necessary in order to achieve the objectives of the investigation—namely, obtaining direct evidence to convince a jury beyond a reasonable doubt of the full scope, extent, and personnel of the narcotics trafficking conspiracies; the identity and role of all suppliers of narcotics to the identified conspirators; the identity and role of the main customers of the identified conspirators; the stash location where the narcotics were stored before distribution; the organization's method of distributing narcotics; and the management and disposition of proceeds generated by the organization's narcotics trafficking. Special Agent Diederich then listed the investigative techniques he had already used or had considered using in the investigation and explained why these techniques were not likely to succeed in identifying all members of the organization and establishing beyond a reasonable doubt the full scope of the conspiracy. These techniques included the use of a confidential informant; the conduct of physical surveillance; the use of pen registers, trap-and-trace devices, toll analysis, and telephone subscriber information; search warrants and trash searches; and witness interviews, grand jury subpoenas, and grants of immunity. Diederich noted, in particular, that he had been unable to identify the true user of Target Telephone # 1 or to locate the target telephone's physical whereabouts.

Special Agent Diederich also explained that, based on his training and experience, leaders of narcotics trafficking organizations often do not physically handle the narcotics. Because high-level traffickers issue logistical instructions by telephone (and thus avoid contact with the narcotics), law enforcement would be able to discover, through the interception of Target Telephone # 1, when narcotics shipments arrive and which cell heads are to receive those shipments.

Los Angeles County Superior Court Judge Larry P. Fidler approved the application on January 25, 2000, finding probable cause to believe that the target subjects had committed, were committing, and were about to commit offenses involving the importation, possession for sale, transportation, and sale of cocaine (and conspiracy to commit these offenses) (Pen.Code, § 629.52, subd. (a));¹ probable cause to believe that communications concerning these crimes had been, were being, and would be made over Target Telephone # 1, and that information concerning those crimes would be obtained through the interception (§ 629.52, subds.(b), (c)); and that normal investigative procedures had been tried and had failed or reasonably appeared either to be unlikely to succeed if tried or to be too dangerous (§ 629.52, subd. (d)). The wiretap was approved for 30 days.

The Remaining Wiretaps

Based on the information obtained from wiretap No. 00-02, Special Agent Diederich confirmed that Leon was the user of Target Telephone # 1 and submitted a new application (wiretap No. 00-04) for that cell phone, four other cell phones, and two pagers. The affidavit disclosed that aerial surveillance in January 2000 had proved unhelpful, that the intercepted conversations had been "extremely coded" and the participants had identified themselves for the most part only by moniker, and that the identities of the users and the physical whereabouts of most of the phones were unknown.

The affidavits for the remaining wiretap application extensions recounted the progress of the investigation, including the seizure of eight kilos of cocaine from a Los Angeles hotel and the seizure of $260,125 in cash at the' Los Angeles International Airport in January 2000, the seizure of 1,150 pounds of marijuana at an Alhambra apartment in February 2000, and the seizure of 172 kilos of cocaine in three separate incidents in April and May 2000. The affidavits also recited that the seizures nonetheless had yielded little information as to the organization's source of supply or method of distribution; that the task force's attempts at physical and aerial surveillance had been detected and, on occasion, compromised; and that Leon appeared to be coordinating a large shipment of narcotics in the; near future. On September 13, 2000, agents from the Drug Enforcement Administration arrested 23 people, including Leon and Aceves.

Discussion

"In general, California law prohibits wiretapping." (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1195, 105 Cal.Rptr.2d 187; see § 631.) The Presley-Felando-Eaves Wiretap Act of 1988 authorized specified law enforcement officials to apply for a court order to intercept wire communications, but only where there was probable cause to believe the target was involved in the importation, possession for sale, transportation, manufacture, or sale of heroin, cocaine, PCP, or methamphetamine in specified quantities, or in a conspiracy to commit those offenses. (Former § 629.02, subd. (a)(1), (2), added by Stats.1988, ch. Ill, § 2, p. 450.) In 1995, the Legislature enacted section 629.50 et seq. in order "to expand California wiretap law to conform to the federal law." (...